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[2022] ZAECPEHC 6
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Didodi v Head of Government Employees Medical Scheme (The Information Officer) (1499/2021) [2022] ZAECPEHC 6 (1 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, GQEBERHA)
CASE
NO: 1499/2021
Date heard: 17
February 2022
Date delivered:
1 March 2022
In
the matter between
NTSIKELELO
WISEMAN
DIDODI
Applicant
VS
THE
HEAD OF GOVERNMENT EMPLOYEES
MEDICAL
SCHEME (The Information
Officer)
Respondent
JUDGMENT
LOWE
J:
INTRODUCTION
1.
This
application relates, at this stage, only to the costs thereof.
2.
The
origin of the application is that Applicant brought this application
seeking an order that it be furnished with copies of the
scheduled
medical expenses as well as supporting vouchers relevant to Applicant
held by Respondent.
3.
The
application was launched by service of the application (which had
been issued on 7
th
June 2021) upon Respondent on 21 June 2021.
4.
Subsequent
to the service of the application Respondent on 29 July 2021in fact
furnished Applicant with the information sought.
5.
Applicant’s
argument was in essence that it was entitled to the documents sought,
that these had not been furnished notwithstanding
its request
therefore, that it complied with the time limits relevant in bringing
the application in circumstances where the Respondent
had failed
and/or refused to do the necessary.
6.
Applicant
concedes that the chronology of events is crucial to its success on
the costs which relate to the merits of the application
being in its
favour.
7.
Respondent,
however, argues in the essence that it only became aware of the fact
that the documents were sought on service of the
application upon it
on 21 June 2021, and that having provided these documents in due
course, on 29 July 2021, the application ought
to be dismissed having
been brought prematurely and accordingly that it is entitled to the
costs thereof.
THE
CRUCIAL ISSUES
8.
In
argument, upon an examination of the chronology of events,
Respondent’s counsel was driven, quite correctly, to concede
that Respondent had, at the latest (or was deemed to have) received
the request for the documents from Applicant upon the day in
which
the request therefor, sent by registered post, had reached its
destination and the registered slip delivered to Respondent,
as
deemed having regard to the provisions of the Promotion of Access to
Information Act 2 of 2000 (PAIA) as read with section 7
of the
Interpretation Act 33 of 1957.
9.
The
chronology demonstrated that the registered letter request for
information was in transit from 19 April 2021 to 11 May
2021, the
registered slip notifying Respondent that the letter had been
received at the relevant post office provided to Respondent
on 11 May
2021.
10.
Again,
in my view, correctly and having regard to section 56(1) of the PAIA
the 30 day waiting period afforded Respondent expired
30 days
subsequent to 11 May 2021.
[1]
11.
Whilst
the application had been issued on 7 June 2021, it was not served
until 21 June 2021, accordingly the institution of the
action fell
outside the 30 day notice period. The application for
information was deemed, in terms of PAIA
[2]
to be refused and having regard to the fact that Respondent is a
private body, there is no statutory appeal process required to
be
followed.
12.
In
the result, the application, was launched in accordance with the
periods prescribed in PAIA, to which Respondent had no defence,
and
in fact supplied the relevant documents in due course, although only
on 29 July 2021.
13.
In
argument, Respondent, through its counsel and notwithstanding his
best efforts, was unable to put up a defence to the merits
of the
application.
14.
The
request for access to information was addressed to the correct
address chosen by Respondent in its information manual and in
one of
the manners chosen in the manual. The application to compel
was, in my view, correctly launched in terms of section
78, 81 and 82
of PAIA, service having occurred on 21 June 2021.
[3]
15.
In
the result, the merits of the application fall to be determined in
Applicant’s favour, a proper case having been made out.
COSTS
16.
In
the result, it follows that costs should, on the usual basis, having
regard to justice and equity, be awarded to Applicant, no
defence
being disclosed in respect thereof.
17.
Applicant,
however, goes further and seeks, in the application, and now, costs
on the scale as between attorney and client.
18.
Upon
initially reading the application, it seemed to me that perhaps this
request for costs on attorney and client scale was something
of a
stretch.
19.
Having
heard argument, and having carefully considered the papers and
annexures thereto, I am now persuaded that in this particular
matter
a costs order on the scale sought would be appropriate.
20.
Attorney
and client costs are in general awarded in circumstances where the
litigation is vexatious, fraudulent or dishonest, or
constitutes an
abuse of process.
[4]
To
this one may add that such order is justified where the conduct
concerned is “extraordinary” and worthy of
the Court’s
rebuke.
[5]
21.
The
fundamental basis of the argument in respect of punitive costs
surrounds the fact that Applicant contends that not only did
Respondent suggest, (wrongly), that it had a defence relevant to
Applicant not paying the fee relevant to the request for access
but
further, in the face of Applicant having brought an application
perfectly correctly, threatened Applicant with opposition to
the
application, threatening to seek a costs order on an attorney and
client basis in the circumstances where this was patently
unjustified, and further in circumstances in which Respondent had not
yet furnished the documents sought when it should have done
so as
these documents should have been furnished once Respondent became
aware of the request therefor and its obligation to act
accordingly.
22.
The
application itself, as I have said, was deemed to have been launched
on 21 June 2021, but the documents were only supplied on
29 July
2021, some very considerable period post Respondent’s deemed
receipt of the request therefor on 11 May 2021.
23.
Perhaps
the high water mark is a letter from Respondent’s
attorneys to Applicant’s attorney of 12 July 2021 in
which the
following appears at paragraph 6:
“
However,
our client is willing to provide your client with the requested
documentation subject to your client’s written undertaking
that
he will withdraw the application within seven (7) days of receiving
the aforesaid documentation. Should your client
not agree to
the above proposal, we hold instruction to oppose the matter and seek
a punitive costs order.”
24.
To
put it mildly this seems to be an attempt , and an unjustified one at
that, to avoid the inevitable consequence of the application
in
circumstances in which Respondent must have well known that it was
obliged to and had not yet provided the documentation, with
an
unwarranted, (and unfortunate) insinuation that unless this was
acceded to the documentation would not be provided, this offer
being
conditional upon an undertaking to withdraw the application, and that
if this was not agreed to the matter would be opposed,
Respondent
seeking a punitive costs order.
25.
This
is not conduct warranted in matters such as this let alone one where
an Applicant legitimately seeks documents which had not
been provided
within the time limits set out in the PAIA.
26.
In
my view, in the circumstances taken as a whole a punitive costs order
is warranted.
THE
ORDER
27.
In
the result the following order issue:
Respondent
is to pay Applicant’s costs of the application on the scale as
between attorney and client.
______________
M.J. LOWE
JUDGE OF THE HIGH
COURT
Appearing on behalf of
the Applicant: Adv. P. Marais
Instructed
by: Jaco Hattingh Attorneys, Ms. Gordo-Graham
Appearing on behalf of
the Respondent: Adv. Dwayi
Instructed
by: Mac Robert Attorneys, Kem Tumba Diong
[1]
PAIA s56(1):
Decision on request and notice thereof.—
(1) Except if the provisions regarding third party notification
and intervention contemplated
in Chapter 5 of this
Part apply, the head of the private body to whom the request is
made must, as soon as reasonably possible, but
in any event within 30 days, after the request has been received
or after the particulars required in terms of section
53 (2) have been received— (a) decide in
accordance
with this Act whether to grant the request; and
(b) notify the requester of the decision and, if
the requester
stated, as contemplated in section 53(2(e), that he or she wishes to
inform him or her in that manner if it is
reasonably possible.
[2]
Paia Section 58: Deemed refusal of request.—
If the head of a private body fails to give the decision on a request for
access to the requester concerned within the period contemplated in section 56 (1), the head of the private body
is
for the purposes of this Act, regarded as having refused the request.
[3]
Tladi vs Guardian National Insurance Company
Limited
[1992] 1 All SA 168
(T) at 171; Finishing Touch 163 (Pty)
Ltd vs BHP Billiton Energy Cole South Africa Limited and others
[2012] JOL 29082
(SCA) at paragraph 20; Paul v MEC for Health (EC)
Case no 5031/2018, Mthatha.
[4]
Public Protector v South African Reserve Bank
2019 (6) SA 253
(CC) [8]
[5]
Public Protector supra; Plastic Converters
Association of South Africa (PCASA) v National Union of Mineworkers
Union of South
Africa and Others [2016] 37 ILJ 2815 (LAC) (6July
2016) [46]